Margaret Kwoka’s “Saving the Freedom of Information Act” as a Model for the Empirical Study of Administrative Law, by Nicholas R. Parrillo
*This is the first post in a symposium on Margaret Kwoka’s new book, Saving the Freedom of Information Act. For other posts in the series, click here.
Margaret Kwoka’s Saving the Freedom of Information Act is one of the best empirical studies ever written on administrative law. Start with the findings, which are sweeping in their government-wide scope and striking in their substance. Whereas FOIA’s purpose is to enable journalists and watchdogs to conduct oversight of government for public accountability, the Act does this poorly because the overwhelming majority of resources that agencies expend on the Act go to other kinds of requests with narrow, private aims—most commonly people’s requests for information about themselves (especially to improve their chances of winning individual adjudications before an agency) and businesses’ requests for information that has economic value to them. Thus, FOIA mainly serves interests that are beside the point of the Act. And it doesn’t even serve them well. Such private interests would be more efficiently served if agencies built dedicated systems for disclosure of these private-benefit records, as through affirmative-disclosure regimes, discovery procedures in adjudication, etc. Offering such systems would, in turn, greatly diminish people’s need to use FOIA for private purposes and free up agency FOIA resources to fulfill the Act’s promise of facilitating oversight for the sake of the public.
The book exemplifies what you might call hard-won knowledge. Such knowledge is not based on case law, nor even on agency policy, but on agency institutional behavior arising in the interstices of law and policy—behavior that is often unplanned and only semi-conscious for the actors who engage in it. Moreover, it’s not the institutional behavior of just one agency, but a pattern of behavior across several agencies, each of which has little to no awareness of what its peers are doing. In other words, it’s the kind of knowledge that, while eminently practical, can only be produced by a professional scholar—by someone positioned to invest the intellectual energy and time necessary to take the synoptic view of a problem that is too large and complex for any of the actors within the system (or any casual observer) to see it whole. As Kwoka points out, “[e]ven FOIA officers typically do not know who is making the bulk of requests at any agency other than their own” (p. 59).
Kwoka marshals many kinds of sources, but two stand out. First, compared to prior literature, she provides a far more comprehensive assembly of quantitative data on who is making FOIA requests and for what ends. In particular, she obtained hundreds of thousands of requester identities (through FOIA requests to nearly 100 agencies) and conducted a staggering amount of detective work to determine, or at least infer, what ends these identified requesters were seeking.
Second, Kwoka contextualizes the requestor data and imbues it with meaning through a series of interviews with those making requests and receiving them. Her interviewees include about a dozen journalists who’ve used FOIA for oversight purposes; around two dozen attorneys who represent non-oversight requestors at various agencies (often identified by the request records), particularly DHS, the IRS, the EEOC, and OSHA; and a range of current or former agency FOIA officials—several at DHS (Kwoka even made a pilgrimage to DHS’s gigantic “cave” of records near Kansas City), plus one or more officials at each of several other agencies, including DOL, the IRS, NARA, the Bureau of Prisons, the SEC, HUD, and Veterans’ Affairs. The revelations gleaned from the interviews are too many to count. Perhaps most profound are the FOIA officials’ explanations of how they have set up their operations, rationally yet perversely, to focus on efficient processing of the requests that are greatest in volume (non-oversight), as distinct from the oversight requests that are supposed to be the point of FOIA (pp. 172-74).
For the remainder of this post, let me note five things Kwoka does methodologically that I think are especially worthy of emulation in the empirical study of administrative law:
1. Inferences and Transparency.
Some of Kwoka’s conclusions follow obviously from the data she has extracted, while others require more uncertain inferential steps, and she is quite transparent about her reasoning processes and levels of confidence. In many cases, her mastery of the voluminous requestor information allows her to make conclusions that, while circumstantial, are quite illuminating. For example, regarding requests to FDA, she notes the types of records that information resellers are requesting and the similarity of such records to those requested directly by regulated entities such as Merck and Eli Lilly, supporting an inference that the resellers’ customers are themselves FDA-regulated entities (p. 118).
2. Toggling Between the Substantive and the Trans-Substantive.
Like any source of administrative law (including the APA), FOIA “is a trans-substantive law, yet its use is extremely substance-specific” (p. 70). If one wants to appreciate the workings of a legally- and superficially-uniform body of administrative law at the level of institutional behavior, it’s necessary to examine actual agency operations, which means picking one or more substantive contexts and looking specifically at them. But analyzing any substantive context is perilous without gaining some literacy in it first.
For each of the many agencies Kwoka treats, she psyches out the stakeholders and their interests and practices, as well as relevant agency policies. Having discerned what is happening in numerous specific substantive contexts, Kwoka then identifies commonalities among them—e.g., that the regulatory agencies tend to be dominated by commercial requestors, while law-enforcement and benefit-granting agencies are dominated by people requesting information about themselves. Thus, Kwoka ends up with a new set of trans-substantive generalizations, but ones inductively built up from specific substantive operations, and looking quite different from the superficial official categories of the trans-substantive law.
3. Multiplicity of Perspectives.
Interviews are key to discerning institutional behavior, yet any one interviewee is situated in a particular role with its own set of interests and blinders. There is no perfect way for a scholar relying on interviews to correct for the fact that “where you stand depends on where you sit.” Yet Kwoka goes far toward doing so by interviewing people with diverse perspectives on the same phenomenon. Often that means the representatives of non-oversight requesters who take up most FOIA resources, the journalistic requestors who are left to deal with the resource shortfalls and delays, and the FOIA officials who try to make ends meet amid competing demands. Kwoka has listened to so many diverse actors that she can avoid being a mouthpiece for any of them.
Kwoka is telling a very disturbing story—of idealistic legislation that is failing at its mission because it’s been diverted to alternative purposes that it doesn’t even serve well. With a story this bad, there is often a temptation to see conspiracies and villains, which is usually reductionist. Kwoka never gives in to such temptation. On the contrary, and in the best tradition of sociology, she empathetically puts herself in the shoes of every actor in the story and explains why their own actions seem right to them. In the case of the FOIA officials who’ve built the systems catering to non-oversight requests that Kwoka finds so unfortunate, she writes, “If I were a Chief FOIA Officer, I would do the very same thing” (p. 173).
I might add that this is a useful mindset for a scholar seeking to interview people working in problematic systems. Interviewees tend to be more forthcoming if they sense that the interviewer is able to see things from their point of view and appreciate their situation (even if not necessarily agreeing with them about everything). I have no firsthand knowledge of Kwoka’s interviewing technique, but I suspect her empathy is one reason she was so successful in eliciting these people’s insights. Several of them really went the extra mile to help Kwoka (and us) understand how FOIA works (e.g., the FOIA official at the Bureau of Prisons, cited several times, including at pp. 102-03).
5. Time, Long Advance Planning, and Patience.
For all the faults of FOIA that Kwoka demonstrates, she also insists on the Act’s continued usefulness, and the book itself is proof of that, as so much of the evidence was obtained through her own FOIA requests. Yet, befitting the book’s theme of delay, the requests took a really long time. The earliest ones were made seven years before the book appeared. For each of her nearly 100 requests, she “gave the FOIA process at least a year, and in many cases more than a year” (p. 62). Though FOIA is extreme, it reflects a common challenge with empirical inquiry about bureaucracy—that it requires such an investment of time and that its results are uncertain ex ante. Yet the rewards can be so large, as Kwoka’s book shows, that we must all remind ourselves (especially when we serve on tenure review committees or hiring committees or in other similar capacities) of the need for our field to have patience with such endeavors and accommodate them.
Nicholas R. Parrillo is Townsend Professor of Law at Yale Law School.